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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Norwood J. Ruiz filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. This award arises out of the remand ordered by the Authority in U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Red River, Texarkana, Texas and National Association of Government Employees, Local R14-52, 56 FLRA 62 (2000) (Red River). The Union filed an opposition to the Agency's exceptions.

On remand from the Authority, the Arbitrator addressed the Authority's request to clarify what he meant when he used the words "though federal court decisions" in the initial award. For the reasons set forth below, we conclude that the award as clarified is deficient under section 7122(a) of the Statute. Accordingly, we grant the Agency's exceptions.

II. Background and Arbitration Award

A. Initial Award and Authority's Decision

In the initial award, the Arbitrator resolved the Union's grievance concerning the Agency's decision to change the number of position titles designated for [ v56 p844 ] random drug testing as established by the Agency's "Drug-Free Workplace Plan" (Plan). [n1] As relevant here, Section IX of the Plan, "Random Testing," states that "employees in sensitive positions that have been determined to be testing designated positions" ("TDPs") will be subject to random drug testing. SeeRed River, 56 FLRA at 62. Subsequently, in 1993, the parties negotiated an additional provision, Article XL, which states at Section 2 that "[t]he Testing Designated Positions (TDP's) will be governed by applicable Federal Court decisions." Seeid. at 62. The Agency later informed the Union that additional TDPs were being added to those originally included in the 1993 agreement.

The Arbitrator held that the Agency violated Article XL, Section 2 by adding TDPs to the Plan. In coming to that conclusion, the Arbitrator found that, during negotiations, the Union's proposal for Article XL, Section 2 "was made with the express, acknowledged intent to `lock in' specific employees, that the Agency had included all of the positions it intended to include based upon existing case law at the time and that the only method of adding any positions to those set out at that time was to be through Federal Court decisions, through negotiations or by agreement." Seeid. at 63. Accordingly, the Arbitrator ordered the Agency to rescind the TDPs that it had added to the Plan.

On review of the exceptions, the Authority held that a remand was necessary to clarify whether the award was contrary to law. Specifically, the Authority found that the meaning of the Arbitrator's use of the phrase, "through Federal Court decisions," was unclear, and was subject to different interpretations. Seeid. at 66-67. Under one interpretation, the Agency's decision to designate additional TDPs would have to be preceded by specific judicial approval. Absent such approval, the Agency head would be unable to test employees who did not already occupy positions designated by the Agency's Plan. Under a second interpretation, the Agency would remain free to designate additional positions as long as its decisions were consistent with applicable case law. The Authority also recognized that the award could be interpreted to mean that the Agency would not be able to designate additional positions, even though the designation would be consistent with applicable judicial precedent, if the case law permitting the testing of those positions was in existence at the time the Agency developed its original list of TDPs.

B. Award on Remand

On remand, the Arbitrator ruled that his use of the phrase "through federal court decisions" was "meant to provide that the inclusion of additional TDP's [sic] based upon new Federal Court decisions subsequent to the signing of the Collective Bargaining Agreement in 1993 would be permissible. This would also include any additional positions stemming from prior cases that might have been clarified or expanded by the Court subsequent to that time that were not included in the positions designated for testing at the time the 1993 contract was signed." Award at 3.

III. Positions of the Parties

A. Agency's Exceptions

The Agency claims that the clarified award is contrary to the Executive Order. Specifically, the Agency argues that, "[u]nder the arbitrator's remand award interpretation, the Agency still could not designate additional testing positions, absent additional judicial precedent decided after [the] 1993 [agreement]." Exceptions at 3 (emphasis excluded). As such, the Agency claims that the award places greater limits on the class of positions that may be designated as "sensitive" than does the Executive Order and, therefore, is contrary to law.

In addition, the Agency claims that, as interpreted by the Arbitrator, Article XL is not enforceable as a procedure or arrangement under sections 7106(b)(2) and (b)(3) of the Statute. Citing Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990), and United States Department of the Interior Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992) (Minerals Management), the Agency claims that the provision "is not responsive to any identified adverse impact" and "is not sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of management's rights[.]" Exceptions at 9. The Agency claims that "[t]he [A]rbitrator did not enforce a prophylactic measure designed to prevent employees from being harmed by unfair or inaccurate designations of their positions as TDPs." Id. at 10.

The Agency claims that even if Article XL is enforceable by the Arbitrator as an arrangement, the award "abrogates management's rights" under 5 U.S.C. § 7106(a)(1). Id. at 11. The Agency claims that its "ability to exercise its internal security rights" is outside of its control because the designation of new TDPs would be contingent on a party initiating litigation. Id. The Agency also claims that Article XL is not enforceable [ v56 p845 ] as a procedure because the provision "directly interferes" with its right to determine its internal security practices. Id.

Finally, the Agency claims that the Arbitrator's interpretation of Article XL resulted in an illegal remedy. According to the Agency, the award would have been "legally defensible" only if the Arbitrator had interpreted Article XL to allow the Agency to be free to "designate additional positions as long as its decisions are consistent with general judicial precedent no matter what year the cases were decided." Id. at 15.

B. Union's Opposition

The Union argues that the clarified award enforces the following interpretation of the parties' agreement:

The language and the intent of the Agreement were to lock the agency into the positions that could be tested
consistent with Federal case law at the time of the Agreement. The scope of positions tested would not be
expanded except by further negotiation, mutual agreement or an expansion of existing case law. The meaning
of "through Federal Court decisions" was that the agency could only expand the scope by showing that there
had been an expansion of the case law to include additional positions. This did not require the agency to seek
judicial approval for specific positions. Instead, it reflected the agreement of the parties that the positions listed
at the time of the Agreement were all of the positions that could be legally tested. If there was a change in the
case law anywhere in the Federal system that would serve as precedent to allow for additional positions at the
agency to be tested, then the agency could expand the scope of its programming in accordance with the new
case. Absent that, the parties' agreement was that the positions identified at the time were all that the Fourth
Amendment permitted.

Opposition at 9-10. Pursuant to that interpretation, the Union claims that the award does not conflict with the Executive
Order. The Union adds that "following the Fourth Amendment is not an improper constraint on the Executive
Order[.]" Id. at 8.

Next, the Union argues that the award does not violate management's rights under section 7106 of the Statute. As a preliminary matter, the Union claims that the Agency's argument on that point is the same as the Agency's claim at the initial hearing that the grievance was not arbitrable, a claim rejected by the Arbitrator on timeliness grounds. Therefore, the Union argues that the Agency "should be barred from raising" the argument "when it did not timely raise the issues below." Id. at 12. The Union also argues that the Agency has failed to prove that the Arbitrator did not properly enforce the agreement provision as an arrangement.

IV. Analysis and Conclusions

A. Standard of Review

Because the Agency claims that the award is contrary to law, namely, Executive Order No. 12,564, or, alternatively, section 7106(a)(1) of the Statute, we review the exceptions de novo. See U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). See also National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (if the arbitrator's decision is challenged on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Seeid.

In addition, where an agency asserts that an arbitrator's award is inconsistent with management's rights, the Authority first determines whether the award affects management's rights. SeeUnited States Small Business Administration and American Federation of Government Employees, Local 2951, 55 FLRA 179, 184 (1999). If it does, then the Authority applies the two-prong test set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP).

B. The Award is Contrary to Law

The Arbitrator's enforcement of Article XL is contrary to law. The effect of Article XL, as interpreted and applied by the Arbitrator, is to "lock in," at the point in time that the parties agreed to that provision in 1993, the specific position titles subject to random drug testing as part of the Agency's Drug-Free Workplace Plan. As a result, the award prevents the Agency from adding any new TDPs to the Plan unless Federal court cases decided after the parties signed their 1993 agreement add to, clarify, or expand the number of positions that may be designated by the Agency. [ v56 p846 ]

Section 3(a) of the Executive Order requires the head of each Executive agency to "establish a program to test for the use of illegal drugs by employees in sensitive positions." Section 7(d) of the Executive Order provides that "employee in a sensitive position" refers to: (1) an employee in a position designated by the agency head as having a sensitivity level of 2-4 under Chapter 731 of the Federal Personnel Manual or in a position which the agency head designates as sensitive under Executive Order No. 10,450; (2) an employee who is granted access to classified information or who may be granted such access under Section 4 of Executive Order No. 12,356; (3) Presidential appointees; (4) law enforcement officers as defined in 5 U.S.C. § 8331(20); and (5) other positions that the agency head determines involve law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence.

Section 7(d) clearly requires the Agency head to have the ability to designate as "sensitive" all employees in positions that fall under the scope of the Order. SeeAmerican Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1079-83 (1990) (Proposal 2) (Department of Education) (proposal that restricted agency head's discretion to designate sensitive positions held inconsistent with Executive Order No. 12,564), enforcement denied on other grounds sub nom., Minerals Management, 969 F.2d 1158. Here, the Arbitrator effectively ruled that the terms of Article XL prevent the Agency head from adding any TDPs to the Plan, unless the Agency head receives specific judicial approval from cases decided after the parties signed their 1993 agreement. As such, the award restricts the Agency head's ability to designate new positions as "sensitive" which it would otherwise be able, or required, to designate under section 7(d) of the Executive Order. [n2] Therefore, we find that the award restricts the Agency head's discretion in a manner that is inconsistent with the Executive Order. SeeDepartment of Education, 38 FLRA at 1082. Accordingly, the award is contrary to law and must be set aside. [n3]

V. Decision

The award ordering the Agency to rescind the TDPs it had added to the Plan is set aside.

Footnote # 1 for
56 FLRA No. 139

The Plan was created in response to Executive Order No. 12,564 (the "Executive Order"). The stated purpose of the Plan is to
"set forth objectives, policies, procedures, and implementation guidelines to achieve a drug-free federal workplace . . . . " See Red
River, 56 FLRA at 62.

Footnote # 2 for
56 FLRA No. 139

Even if, as claimed by the Union, the positions designated by the Plan at the time of the agreement were all of the positions
that could legally be tested, the Union does not take into account that under the Executive Order the Agency head is required to
designate, from a class of positions that is continually susceptible to growth and change, those positions that are sensitive in nature.
In this regard, we note that, as pointed out by the Agency's drug program administrator at the initial hearing, it is common for the
Agency to add new work methods, technology, and machinery which make positions either more or less hazardous, thereby affecting
whether those positions should be put under testing coverage. See Transcript at 192 (attached to Agency's exceptions to original
award). It is also common for agencies to hire new employees who occupy new position descriptions. The award in this case
limits the Agency head's ability to designate such positions as sensitive for drug testing purposes.

Footnote # 3 for
56 FLRA No. 139

Because the award is contrary to law, there is no need to address the Agency's management rights arguments or to apply a
BEP analysis.